Durham News

Durham’s probable-cause searches rise after consent policy is implemented

A new study shows Durham police are searching fewer motorists by consent since they started having to get written permission first.

On Oct. 1, the city began requiring written consent on searches when an officer lacks evidence to suggest a crime has occurred. Since then the number of consent searches made during traffic stops has decreased by 34 a month, or about 54 percent.

At the same time, the number of probable-cause searches has increased by nearly 49 a month, or 156 percent, according to the analysis.

Now some people want to know why.

“From the numbers it appears there was a substitution effect,” said Frank Baumgartner, a UNC political science professor who did the analysis, along with two graduate students, using police department statistics provided to the state.

The analysis was discussed at a Monday night forum in Durham about law enforcement and community relations.

Police Chief Jose Lopez, who sat on Monday’s panel, disagreed with the analysis’ conclusion.

“There is no way you can substitute a probable cause for a consent search,” he said. “You either have probable cause or you don’t.”

Lopez couldn’t be reached for additional comment, but police spokesman Wil Glenn said it’s too soon to come to any conclusions.

“We’re still analyzing the available data to understand what it means,” he wrote in an email.

Following some community pressure, Mayor Bill Bell asked the city’s Human Relations Commission in 2013 to investigate police bias claims. The commission held months of public hearings before concluding “racial bias and profiling (are) present in the Durham Police Department practices.”

On Oct. 1, Durham began requiring officers to obtain a motorist’s signature on a form before a search.

In general, the Fourth Amendment prohibits officers from searching people whenever they want, so officers have to have legal justification or receive permission, said Ian Mance, an attorney with the Southern Coalition for Social Justice, one of the organizations that pushed for the consent form policy.

In Durham, Mance said, the police department was reporting an unusually large percentage of consent searches, and there were situations in which people were saying they didn’t consent.

The consent forms sought “to force the police department to demonstrate that they are actually receiving consent,” Mance said.

Now, to conduct a search officers have to get permission or have a probable cause, a legal justification for a search, such as a gun or drugs in plain sight or inconsistencies in statements.

During a presentation on 2014 traffic stop data at the a Durham City Council work session Thursday, Deputy Chief Larry Smith said he expected the number of probable cause searches to increase, but he was surprised by how much.

“It was higher than I expected,” he said.

Smith said a factor that influenced those numbers was a 90 day operation – which went into full effect in February – to address an unusual run of violent crime in Cornwallis Road and McDougald Terrace public housing communities.

The operation included knocking on doors to let residents know why they the police are in the communities, as well as a lot of traffic stops and searches.

Smith also said officers typically start with asking for a consent search, even if there is probable cause.

Smith said that he expects the numbers to go down over time and pointed out that the probable cause searches had dropped to 57 in June, which wasn’t included in the UNC analysis.

However, Smith did contradict Lopez’s statement at the meeting Monday, pointing out that probable cause “is not an exact science,” and two officers could disagree on whether a situation rises to the level of probable cause.

The most common basis of a search is the observation of suspected contraband and the next is erratic or suspicious behaviors, Smith said.

Of the drivers stopped, nearly 59 percent were black and nearly 39 percent were white and Hispanic. Durham had relatively similar rates of racial disparity for stops and searches compared to other cities, the report states.

In 2014, about 6 percent of traffic stops resulted in a search. Of the 1,227 stops in which a search occurred, about 29 percent resulted in contraband being found.

Over the past five years, the total number of traffic stops has decreased 20 percent.

City Councilman Steve Schewel said the presentation was a mixed bag.

He applauded that the number of stops has decreased over time, but expressed concern about the increase of probable-cause searches.

City Council members said they plan to monitor the number of probable-cause searches over time.

Virginia Bridges: 919-829-8924, @virginiabridges